Chan Tak Ming v. HKSAR

FACC No. 5 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2010 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 851 OF 2009)

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Between:

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Mr Justice Bokhary PJ :

Four certified questions of law

1.This appeal against a conviction for misconduct in public office comes to the Court on the following four questions of law.  First, where a charge of misconduct in public office is pleaded on the basis of official data being abstracted for private use, is it permissible to find the necessary seriousness upon, or at least partly upon, the private use to which such data was actually put, such use not being specified in the charge? Secondly, to what (if any) extent is a significant personal benefit to the defendant a part of the element of seriousness in the definition of the offence of misconduct in public office?  Thirdly, is anything which is not trivial to be regarded as serious for the purposes of that definition?  Fourthly and finally, is it appropriate in circumstances like these for the intermediate appellate court to apply a test of recklessness when the trial had proceeded on the issue of intention? 

2.The Appeal Committee certified the points of law raised by those questions and granted the appellant Dr Chan Tak Ming leave to appeal on those points.  As the Appeal Committee observed, whether or not the conviction is to be affirmed even if those questions, or some of them, are answered in Dr Chan’s favour could not be decided then at the leave stage and has to be decided now at the appeal stage.

Misconduct in public office : its elements

3.Misconduct in public office is an offence contrary to common law and punishable under s.101I of the Criminal Procedure Ordinance, Cap.221.  Its elements are as stated by Sir Anthony Mason NPJ in Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381 at p.409C and re-formulated by him in Sin Kam Wah v. HKSAR (2005) 8 HKCFAR 192 at pp 210I-211A.  Under that re‑formulation, the offence of misconduct in public office is committed where :

(1)  a public official;

(2)  in the course of or in relation to his public office;

(3)  wilfully misconducts himself by act or omission (for example, by wilfully neglecting or failing to perform his duty);

(4)  without reasonable excuse or justification; and where

(5)  such misconduct is serious, not trivial, having regard to the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

Immediately after laying down that re-formulation, Sir Anthony explained (at p.211B in Sin’s case) that :

“The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.”

That is the law, and nothing should be introduced to confuse it. Thus I would expressly reject, for example, the notion, which appears to have found some support in the courts below, that what would not otherwise be a departure from official responsibilities would be rendered such a departure simply by personal motives.

Background

4.Shortly stated, the background to the present case is as follows.  Dr Chan is a registered medical practitioner who is now in his late forties and of previous good character.  He started working at the Queen Elizabeth Hospital in 1989.  From April 1995 until his resignation in January 2007, his post was that of a senior medical officer in one of the four teams, each led by a consultant, in the Department of Clinical Oncology at that hospital.  As such, he was in the employ of the Hospital Authority and was a public official within the purview of the offence of misconduct in public office.  He tendered his resignation on 2 January 2007, doing so in order to enter private practice. His terminal leave commenced on 3 March 2007.  And he commenced private practice on the same day.  That is the background.  One can now turn to the charge, the conviction at trial and the affirming of the conviction on intermediate appeal.

Charge

5.The charge of misconduct in public office laid against Dr Chan is based on what he did while still in his post of senior medical officer and therefore a public official.  Its particulars are that

“… sometime between the 1st day of January 2007, and early February 2007 in Hong Kong, [Dr Chan], being a public official namely a senior medical officer of the Queen Elizabeth Hospital, in the course of or in relation to [his] public office, without reasonable excuse or justification, wilfully misconducted [himself] by obtaining for [his] personal use patients’ personal particulars from documents and/or data-handling systems of the said hospital or the Hospital Authority.”

6.Laid in the alternative to that charge of misconduct in public office was a charge of obtaining access to a computer with a view to dishonest gain for oneself or another, contrary to s.161(1)(c) of the Crimes Ordinance, Cap.200, the particulars of this alternative charge being that

“… sometime between mid-January, 2007, and early February, 2007, in Hong Kong, [Dr Chan] obtained access to a computer, namely a computer of the Hospital Authority, with a view to dishonest gain for [himself] or another.”

Conviction entered at trial and affirmed an appeal

7.Dr Chan’s trial took place before D.I. Thomas, Esq. in the Magistrate’s Court from 13 to 16 July 2009.  On 18 September 2009 the magistrate convicted him of misconduct in public office and fined him $50,000.  The magistrate ordered that the alternative charge (of obtaining access to a computer with a view to dishonest gain for oneself or another) lie on the file.  He went on to say that if he was wrong in convicting Dr Chan of misconduct in public office, he would have found him not guilty of obtaining access to a computer with a view to dishonest gain for oneself or another and acquitted him on the alternative charge.

8.Initially Dr Chan’s appeal to the High Court (by which appeals from the Magistrate’s Court are heard unless referred to the Court of Appeal) was against conviction and sentence.  But at the outset of the hearing of that appeal, which came on before Lunn J on 25 February 2010, Dr Chan abandoned his appeal in so far as it was against sentence and pursued it only in so far as it was against conviction.  On 12 March 2010 the appeal judge affirmed Dr Chan’s conviction for misconduct in public office.

Criminal pleadings

9.The law’s vocabulary includes the expression “pleading point”.  As used when roundly rejecting merely technical and wholly unmeritorious objections taken on the pleadings, the expression may be a convenient one.  But it has an unfortunate tendency to create the false impression that pleadings do not matter.  In truth, pleadings fulfil an important role in the judicial administration of justice, both in civil and in criminal law.  Due regard to proper procedure makes a significant contribution to the attainment of safe verdicts. 

10.With those observations as the backdrop, a word should now be said on the purpose that particulars of offence are meant to serve.  It is to be expected that at least to a material extent if not essentially or even entirely, how the defence to a criminal charge is conducted will depend on the way in which the charge is particularised.  A proper standard of criminal pleading is fundamental to the dictates of a fair trial.  Criminal charges are to be formulated concisely, accurately and informatively.  Thus formulated, they are to be delivered in time for the defence to give them mature rather than rushed consideration.  The defence must have adequate notice of the case to be met.  As to the particulars of offence to be pleaded in an indictment, the general rule is laid down in rule 3(1) of the Indictment Rules.  It is that there should be pleaded “such particulars as may be necessary for giving reasonable information as to the nature of the charge”.

11.That goes to a fair trial, for which purpose information as to the case to be met would hardly be reasonable if it were not given in reasonable time.  As Lord Widgery CJ stressed (at p.1375B-C) when giving the judgment of the Divisional Court in R v. Thames Magistrates’ Court, ex parte Polemis [1974] 1 WLR 1371, an accused person must be given “an opportunity of getting his tackle in order”.  The inter‑relationship between the giving of reasonable particulars in good time and a fair trial is well-illustrated by the decision of the European Court of Human Rights in Pelissier and Sassi v. France (2000) 30 EHRR 715.  That case concerns three rights under art.6 of the European Convention on Human Rights.  They are : (i) an accused person’s right under art.6(1) to a fair trial; (ii) his right under art.6(3)(a) to be informed of the nature and cause of the accusation against him; and (iii) his right under art.6(3)(b) to have adequate time and the facilities for the preparation of his defence.  At p.729 the European Court of Human Rights pointed out that particulars of the offence play a crucial role in the criminal process and that the scope of art.6(3)(a) and (b) were to be assessed in the light of the more general right to a fair hearing guaranteed by art.6(1).  

12.There is no inconsistency between that thinking and ours.  In Hong Kong the right to a fair trial is an essential principle of the judicial system.  It is guaranteed by two provisions of our constitution the Basic law.  They are : (i) art.39 which entrenches art.10 of the Bill of Rights (where there is an express reference to the right to a fair hearing); and (ii) art.87 which preserves the principles previously applied in proceedings and the rights previously enjoyed by parties to proceedings.  The right to a fair trial naturally includes reasonable particulars given in good time.

13.Since one of the inherent requirements of a fair trial is the giving of reasonable information as to the nature of the charge, the substance of the requirement referred to in rule 3(1) of the Indictment Rules applies to charges in the Magistrate’s Court and the District Court as well as to counts in the High Court. 

14.This appeal is not about a mere lack of detail in how a charge is worded.  It goes to substance.  Did the particulars of offence in this charge of misconduct in public office give reasonable, or even any, information as to the nature of the misconduct in public office of which Dr Chan was actually convicted? This brings us to the rival stances adopted by the parties on the first certified question of law. 

First certified question (obtaining/use)

15.That question – repeated here for ease of reference – is : where a charge of misconduct in public office is pleaded on the basis of official data being abstracted for private use, is it permissible to find the necessary seriousness upon, or at least partly upon, the private use to which such data was actually put, such use not being specified in the charge?  Quite simply, Dr Chan’s point under this question is that such a course is impermissible but was followed in the courts below.  Responding, the prosecution submits that this point of Dr Chan’s is misconceived.  Why is it said to be misconceived?  Because, the prosecution submits, it is pleaded in this charge of misconduct in public office that the data in question had been obtained for Dr Chan’s personal use and, the prosecution’s submission continues, the evidence of the identical letters sent by Dr Chan to the patients whose personal particulars had been obtained is admissible to prove the nature of such personal use.

16.So the prosecution puts forward a line of reasoning on which, if it be correct, the evidence as to the use to which the obtained data was put would be relevant and unobjectionable even on a charge of misconduct in public office particularised like this one.  The prosecution’s reliance on this line of reasoning does two things.  First, it shows that they do not suggest that the case was fought out as if the misconduct charged was the use to which the obtained data was put. Secondly, it may explain why Mr Andrew Macrae SC (now Macrae J) who represented Dr Chan in the courts below did not object to the reception of the evidence as to use.  But did the basis on which the magistrate convicted and the appeal judge affirmed the conviction go beyond that line of reasoning?

17.As we have seen, the conduct particularised as misconduct on Dr Chan’s part is that of “obtaining for [his] personal use patients’ personal particulars from documents and/or data-handling systems of the said hospital or the Hospital Authority.”  That reference to the obtaining of patients’ personal particulars from the Queen Elizabeth Hospital or the Hospital Authority’s documents and/or data-handling systems was accompanied by a reference in the alternative charge to accessing the Hospital Authority’s computer.  Nothing is said in either charge about the use to which any obtained or accessed data was put.  Nevertheless the magistrate dealt at length with the use to which the obtained data was put.  In his Statement of Findings he set out the body of the identical letters which Dr Chan sent to the patients whose personal particulars he had obtained :

“Hello Everyone, I am CHAN Tak-ming, senior clinical oncology medical officer of Queen Elizabeth Hospital. Time flies, and I have already worked with the Queen Elizabeth Hospital for eighteen years, responsible for clinical cases, medical case studies, supervision and training of medical officers in the department. Dedicating my years of clinical experience accrued and giving the patients appropriate treatment to restore their good health is the aim I have been persisting with throughout these years. In this long service of mine, what impressed me most, which is also the most valuable thing to me, is seeing the patients getting a new lease of life and maintaining a very good quality of it. Therefore I really hope to have a chance to create an environment more suitable for patients, which, on one hand, would make it possible for me to make full devotion of my time and to adequately serve each patient, and, on the other hand, to utilize my professional expertise to answer patients’ questions, acquainting them with their conditions and freeing them from worries, and to provide direct and effective diagnosis, with the latest medications and advanced medical technology, improving the overall effectiveness of treatment, providing to the patients integrated service of good quality, which is well-suited to medical and financial conditions. To realise this idea, I have decided to start a private practice beginning from 3rd March this year at rooms 1303-05, 13/F, Oterprise Square, number 26 Nathan Road, Tsim Sha Tsui, Kowloon. I now write to inform you and request the honour of your presence.”

18.Defence counsel submitted to the magistrate that Dr Chan’s conduct, though it may deserve to be condemned in disciplinary proceedings, was nowhere near serious enough to amount to the criminal offence of misconduct in public office.  The magistrate, having said that Dr Chan would have to be acquitted if that submission were correct, proceeded to reject the submission, saying this :

“ In my judgment, [defence counsel] was not correct in this submission. The patients of team C of the Clinical Oncology Department of Queen Elizabeth Hospital gave their personal data to the hospital for the purposes of their care and treatment in that department in that hospital. They had every reason to expect that every data user would safeguard their personal data and not use them for the personal purposes of any data user. [Dr Chan] was well aware of the status of the personal data in question and, initially, tried to restrict his appropriation of such data to those with whom he thought he had a special relationship. In the end, however, because of the constraints of time, he simply appropriated the addresses of all the remaining patients of his team whether or not he had had any personal dealings with them.

[Dr Chan] was cavalier in the extreme in his use of the personal data of the patients in question. In my judgment this was a breach of trust that his employers and his patients placed in him that he would use the personal data to which he had access and with which he was entrusted for purposes connected with the care and treatment of the patients of his team. Instead, he simply helped himself to the personal data of his patients for his own personal purposes.

[Dr Chan] took no advice or counsel as to his proposed actions.  He ignored what I consider to be clear guidelines from his professional body on the advertisement of the commencement of his new practice.  He decided that he was entitled to help himself to the personal data of patients that they had entrusted to the hospital when he felt that it was the most convenient way of advancing his personal ends.”

19.As to seriousness, one sees from those paragraphs of his Statement of Findings that the magistrate condemned Dr Chan’s use of the obtained data as cavalier in the extreme and a breach of the trust which his employers and patients had placed in him.

20.In affirming the magistrate’s finding of the necessary seriousness, the appeal judge relied heavily if not exclusively on Dr Chan’s identical letters to the patients.  This is how the appeal judge expressed his conclusion on the issue of seriousness :

“In my judgment it was obvious to [Dr Chan], an educated and mature man, that the recipients of the letters would realise that the information as to their names and addresses had been obtained from their medical records with the Hospital Authority for the purpose of directing a letter that was in large measure commercial touting by [Dr Chan], in breach of their rights of data protection, and that fact alone would cause disquiet and even outrage in patients. Also, in asserting that he was offering services that included more effective treatment it was obvious to [Dr Chan] that was likely to cause real anxiety and even distress amongst patients as to the quality of the treatment they had received thus far and would continue to receive for those unable to avail themselves of private medical treatment. In so conducting himself in respect of his patients, [Dr Chan] was both abusing their trust and exploiting their lack of knowledge. In a doctor, that is not ‘trivial’ misconduct, rather it is serious misconduct.”

21.As to the letters which he sent to the patients, only one thing was put to Dr Chan in cross-examination.  It is that he had sent those letters with a view to securing business.

22.But this much is plain.  The courts below did not treat the sending of the letters to the patients whose personal particulars had been obtained merely as evidence to prove the nature of the use for which such particulars had been obtained.  Nor did they find the necessary seriousness solely or even mainly on the basis of the obtaining of the data in question (which obtaining was pleaded).  They found the necessary seriousness mainly if not solely on the use to which the obtained data had been put (which use was not pleaded).  That focus on use lies outside what the prosecution puts forward as a line of reasoning on which, if it be correct, evidence as to the use to which the obtained data was put would be relevant and unobjectionable.

23.What is to be achieved by how an indictment is drawn (or exemplified where specimen charges are used)?  That is dealt with by the English Court of Appeal at p.8 of the transcript in R v. Evans [1995] Crim LR 245 and in R v. Rackham  [1997] 2 Cr App R 222 at p.227C-D.  It is to enable the accused person to “know with as much particularity as the circumstances of the case will admit what is the case that he must meet” so that he can “marshall his mind on more important evidence to counter those allegations”.  Moreover in criminal cases as well as in civil cases, pleadings are not meant merely to inform the party to whom they are delivered.  They are also meant to limit the party who delivers them.  And they do so, unless and until duly amended.  In R v. Landy (1981) 72 Cr App R 237 (which was cited with approval by the Court of Appeal in R v. Chan Kang To [1997] HKLRD 412 at p.416A-B) the English Court of Appeal said (at p.244) that particulars of offence are meant

“first, to enable the defendants and the trial judge to know precisely and on the face of the indictment itself the nature of the prosecution’s case, and secondly to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment.”

24.The first certified question of law should be answered thus.  The charge concerned is of misconduct in public office.  It is pleaded on the basis of official data being abstracted for private use.  The private use to which such data was actually put is not specified in the charge.  On a charge so worded, it is in general at least problematical to find the necessary seriousness upon, or to any material extent upon, the private use to which such data was actually put. 

25.But that answer to the first certified question of law does not mean that the conviction for misconduct in public office is wrong.  All that it means is that the approach adopted by each of the courts below must be discarded.  As to what is left, the position is as follows.  Official data had been obtained by Dr Chan for private use.  He did that while in a public office of considerable responsibility, namely that of a public doctor serving in a public hospital.  The official data which he obtained consisted of the personal particulars of persons who were patients at that public hospital and were entitled to have their privacy respected.  And the private purpose for which he obtained that confidential official data was to advertise to those patients the private practice which he was about to establish upon leaving public service.  The foregoing indisputable facts constitute a pleaded and plainly sufficient basis on which to find the necessary seriousness.

Second question (personal benefit)

26.I turn now to the second certified question of law.  As to this question, it is to be noted that the Sin Kam Wah re-formulation makes no mention of personal benefit to the defendant.  And that is for a very good reason.  Misconduct in public office may be committed for personal benefit to the defendant or for motives other than that one.  It may be committed, for example, to benefit others or to harm others.  Indeed, it may be committed for no discernible or provable motive.  That is how the second certified question of law should be answered.

Third question (serious/trivial)

27.Turning to the third certified question of law, it should be answered thus. As the fifth item of the Sin Kam Wah re-formulation underlines, trivial misconduct will of course not support a charge of misconduct in public office. That said, the question is whether the offence is serious having regard to – as stated in that item – the responsibilities of the office and the office-holder, the importance of the public objects which they serve and the extent of the departure from those responsibilities.  It is in that way – and not by saying that it must be sufficiently serious since it is not trivial – that one goes about deciding whether the necessary seriousness exists.

Fourth question (intention/recklessness) answered

28.What remains is the fourth and final certified question of law.  Neither at trial nor on intermediate appeal did either party refer to recklessness. Nor did the magistrate refer to recklessness.  And recklessness was not argued on intermediate appeal.  But when he came to give judgment, the appeal judge said this :

“ Whilst I am not satisfied to the requisite standard that [Dr Chan] knew that he was not permitted to access and use that personal data for the personal purposes to which he deployed that data, I am sure that he was reckless as to that. In particular, I am sure that [Dr Chan] was aware that there was a risk that he was not permitted to access and use the data for the personal purposes he proposed to deploy that information and that in the circumstances known to him it was unreasonable to take that risk. Like the magistrate, I find it significant that, although [Dr Chan] had been employed by the Hospital Authority for many years at Queen Elizabeth Hospital, he took no steps whatsoever to take advice or counsel as to his proposed course of action. Furthermore, it is significant that [Dr Chan] initially restricted his use of the data to those patients with whom he asserted he could describe as enjoying a special relationship. Subsequently, that limitation was abandoned in favour of wholesale dissemination to all the patients of Team C.

I endorse the finding of the magistrate that [Dr Chan] had accessed and used that data for his own personal ends. Clearly, he did so wilfully and intentionally. Whilst I accept that [Dr Chan] had mixed motives for his conduct I am sure that the substantial motive for conducting himself as he did was a desire to enhance the potential for commercial success in his prospective private practice. In the result, I am sure that he exercised his power directly and indirectly to access and then use the personal data of patients in order to confer a benefit upon himself and that in all the circumstances he did so “dishonestly or corruptly”.

29.The Sin Kam Wah re-formulation does not employ the word “recklessness”. But it will be remembered that immediately after setting out that re-formulation, Sir Anthony Mason NPJ said that the conduct must be deliberate rather than accidental in the sense that the official “either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful”.  On a fair reading of what the appeal judge said, his reference to recklessness must be taken to mean wilful disregard of risk as spoken of by Sir Anthony.  The appeal judge’s introduction of recklessness was, while inappropriate, harmless.  It was harmless for this reason.  The magistrate noted in his Statement of Findings that defence counsel “did not take serious issue … that [Dr Chan] wilfully and intentionally culpably misconducted himself” and that the defence was, quite simply, that the misconduct was not sufficiently serious.  So seriousness was the only issue, and nothing turns on the fourth point.

30.Nevertheless, the fourth certified question of law should be answered. It having been raised, not answering it might leave the position in doubt.  The answer is as follows.  Suppose a person is convicted at trial of an offence on one basis.  And suppose that it occurs to an appellate court that the appropriate course may be to affirm the conviction on another basis.  If so, the appellate court should inform the parties that it is contemplating such a course, and give them an opportunity to be heard on that course.  The rules of natural justice so require.

Conclusion

31.In the result and for the foregoing reasons, I would dismiss this appeal.

Mr Justice Chan PJ :

32.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ :

33.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton NPJ :

34.I agree with the judgment of Mr Justice Bokhary PJ.

Sir Anthony Mason NPJ :

35.I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ :

36.The Court unanimously dismisses the appeal.  We thank counsel on both sides for their assistance.  Dr Chan may take some comfort in the fact that the basis on which his conviction now rests is less of a reflection on him than the bases on which it was entered at trial and affirmed on intermediate appeal. What now lies within his own power is to so conduct himself in a noble profession as to live down this unhappy episode.

Mr Gerard McCoy SC and Mr Daniel Hui (instructed by Messrs Richards Butler) for the appellant

Mr Robert S K Lee SC and Ms Peggy Leung (of the Department of Justice) for the respondent